Plaintiff and defendant lived together between May and August 2011, and after that had a relationship that plaintiff characterized as dysfunctional. Plaintiff sought and obtained a restraining order based on defendant’s stalking. According to her, defendant:

– caused a scene at her workplace;

– threatened to tell her parents that the father had cheated on her stepmother;

– told her he planned to post compromising photos of her on craigslist;

– confronted her at a bar after her high school reunion and followed her and a male friend of hers to the friend’s house where he argued with the friend;

– in the days after the in-person confrontation, plaintiff and defendant exchanged text messages and other communications.

After these incidents, plaintiff continued to communicate with defendant, but ultimately broke it off. Prompted by a message defendant posted to her friend’s Facebook page (the content of which was not discussed by the court), plaintiff sought and obtained a restraining order.

Defendant had a different view of the events. He said that they had an “on-again/off-again” relationship. Regarding the reunion, he said the plan was for her to attend the reunion and for them to hook up after. He apparently went to the bar which was close to his house, saw plaintiff, and was concerned about whether plaintiff would be able to drive home. He said he followed her and the friend to the friend’s house where the friend started a scene. He said he couldn’t recall ever insulting or threatening plaintiff via email or text message, but he testified that he regularly exchanged messages with plaintiff.

The trial judge didn’t give much credence to the online activity at all:

I don’t give a lot of credence to e-mails and Facebook and all that nonsense because that’s not a face to face exchange. Nobody is in danger. Nobody suffers from that.

The judge was also confounded about the risqué pictures and why plaintiff sent them to defendant in the first place:

She tells him to stop and then submits naked pictures to him. That’s the dilemma I have. What is she–what is she trying to express by doing that? Is that leave me alone? Is that I–the relationship will continue? I don’t know. I can’t understand that motive–motivation.

Nevertheless, the court granted the restraining order on the basis that defendant caused plaintiff fear by appearing at the bar and following her.

The appeals court reverses, finding that issuance of a stalking-based restraining order requires two elements–plaintiff must prove (1) a predicate act (in this case, stalking); and (2) that an order is necessary to protect the plaintiff from immediate danger or other acts of domestic violence. The court notes that the trial judge was equivocal in her own findings of fact, and failed to explain the many inconsistencies in plaintiffs’ testimony (and ignored defendant’s allegations). The trial judge also failed to find a “course of conduct,” which is required for stalking. The court does say that defendant’s conduct was “immature and jealous,” but there was insufficient evidence to find that he engaged in stalking.

The court also says that the judge failed to make a finding that the order was necessary to protect the plaintiff’s safety or person, pointing out that the trial judge also did not explain the equivocal nature of plaintiff’s conduct (i.e., she appeared to interact with him, despite her testimony that she was fearful of contact with him).

The elephant in the room of course is defendant’s threat to make public the risqué pictures that plaintiff sent to defendant. (The trial judge strangely brushed aside the online activities altogether.) Although the opinion is unclear on this issue, it’s possible that this is what prompted plaintiff to seek the order in the first place. In any event, New Jersey’s anti-stalking statute could conceivably reach this activity, except that the appeals court found no course of conduct to begin with.

The trial judge’s comments question why plaintiff sent the photos after things appeared to be less-than-stable in the relationship. This is starting to go down the path of blaming the victim. Irrespective of when she sent the photos to the defendant, what’s the plaintiff supposed to do now? Waiting until the photos are published is untenable, as the horse would be out of the barn, and no one has a practical solution to cleaning up images from the internet. On the other hand, there are clearly speech concerns with applying an overly broad law such as NJ’s stalking law to solve this problem.